1.Elizabeth Richey — Direct/Cross
104 linesPROCEEDINGS
JUDGE WHEELER: Good morning, everyone. We are here this morning in the State of Florida v. Katherine Magbanua, 2016-CF-3036, 2018-CF-497. Ms. Magbanua is present here in the courtroom along with her counsel and then also counsel for the State.
All right. One short issue to deal with before we start with testimony. It's in regards to the Exhibit 100. That was -- the predicate was laid for it yesterday with the witness Erika Johnson, but it was not played for the jury. And I had an opportunity to listen to that, and let's just go ahead and get our arguments on the record before I make a ruling on that.
So, Ms. Dugan, I appreciate you sending me that promptly, and I reviewed it. It is about a 3-minute phone call that I listened to.
MS. DUGAN: Yes, sir. The State's argument is that it is admissible. It is not hearsay. It is just to -- the purpose of it is to show the subsequent reactions to this phone call -- to show Charlie Adelson's reaction and to show Erika Johnson's reaction of not giving over any employment records.
JUDGE WHEELER: All right. And, Ms. Kawass?
MS. KAWASS: And, Your Honor, in addition to all of the argument and case law that we provided, especially as it relates to subsequent act, they are trying to establish a subsequent act of both Charlie Adelson, who is not a party to this and is not being called as a witness, and also Ms. Johnson. They basically just stated it's not offered for the truth of the matter asserted, but we are trying to show that they didn't turn over the records, which is offering it for the truth of the matter asserted.
So this is also, too, not amongst the investigation in -- during the bump. I believe this occurred in June, when that investigation was over, so this is -- if I'm not mistaken. They are trying to offer it exactly for the actions that were there of what Charlie Adelson was telling her not to do; so I can't see how this is not being offered for the truth of the matter asserted. And also Charlie Adelson's subsequent actions after the conspiracy are irrelevant and so are Erika Johnson's.
JUDGE WHEELER: All right. Thank you. I'm going to rule that it is admissible. It's not offered for the truth of the matter asserted. The substance of the statement is Charlie Adelson talking about how it's not his office and he doesn't have any control over the records, and basically that Ms. Johnson can -- he's not going to direct her really to say anything. He was very careful about that.
But the crux of the conversation is about that they are not his records to divulge to the FBI or whoever was seeking them -- to law enforcement, and so it's not offered for the truth of that matter asserted. And, therefore, I'm going to find that it is admissible, and I'll permit it to be played.
(State's Exhibit 100 received in evidence.)
JUDGE WHEELER: Ms. Dugan, when do you expect that to be played? Are you going to do that right off the bat, or are you going to do it at another time?
MS. DUGAN: I think we will probably do it over the course of Pat Sanford's testimony as he is going through the timeline of the different wire calls, yes, sir.
JUDGE WHEELER: All right. So it looks like Jessica Rodriguez is the first witness this morning, and so anything that we need -- anything else that we need to discuss prior to starting the testimony, bringing in the jury?
And, Mr. DeCoste --
MR. DECOSTE: I stood up too soon. Good morning, Your Honor. This could potentially dovetail nicely into the Crawford argument. That Crawford argument applies as well to this phone call by Erika Johnson. I don't know if the Court wants to handle that now or handle it at a later time.
JUDGE WHEELER: well, let's go ahead. So we were talking about the three wiretaps between Donna Adelson and Charlie Adelson, and my previous ruling that I made was that they are not for the truth of the matter asserted. What those are about were about the attempted -- about the bump and the attempted blackmail, and all of that was a ruse.
So whatever statements are made between these two witnesses -- and I'm just recapping my ruling. whatever statements are made between these two witnesses cannot be for the truth of the matter asserted because there was no truth to that bump. It was a ruse in the first place.
And, in fact, what the State is looking to prove by the admission of these is not the content of what was said but the fact that there was something not said. And that was a reference to Katherine Magbanua, that there was not a reference to her.
So it's not for the substance of the matter because, number one, it doesn't matter what they're talking about. They could be talking about anything. It's the fact that Katherine Magbanua was not mentioned in these calls. And -- but if it was for the truth of the matter asserted, it would be for the State proving a blackmail, and that's not what the State is looking to prove.
So that's a recap of my previous ruling, and I'm going to stand on that ruling at this point for those statements. Now, do you have a Crawford argument in regards to that ruling?
MR. DECOSTE: Correct, Your Honor. So my argument applies to any phone call that does not involve Ms. Magbanua. Crawford, as Your Honor knows, applies to a limited amount of circumstances, but one of the things that it applies to is police integration. Police do something to elicit a response from somebody else.
This situation is unique, but that applies to this. Your Honor says that it was a ruse. The police did this to create chatter. They knew they had the intercept set up. They make contact with Donna Adelson, and they do that because they want to see what is going to be discussed. So it is exactly the same as a police interrogation.
If the police -- and the case that I provided to the Court is Jackson-Johnson v. State, and the cite on that is 188 So.3d 133. It is a 2016 case.
JUDGE WHEELER: All right. In that case it's not --
MR. DECOSTE: Yes, sir. I am going to differentiate. That case is different because that deals with jail phone calls where somebody is on notice, and they said those are spontaneous statements. But there is important language that comes out of that case.
JUDGE WHEELER: No, it's not that it is phone calls. It is the fact that these were admitted. They were hearsay, and they were admitted as an exception. It wasn't a ruling that these are not offered for the truth of the matter asserted. It's not that. That's the distinction.
MR. DECOSTE: I understand, Your Honor. The reason why I'm citing this case is because of the law that's in there, not because of the factual pattern. The law that is given to us from the Court --
JUDGE WHEELER: What the law says, Mr. DeCoste, is that if there is a ruling made on statements that are put into evidence because they are not offered -- they are not hearsay, they are not for the truth of the matter asserted, then there's no confrontation clause protection attached to those statements.
MR. DECOSTE: well, okay. So there's a second part to my argument. The first is Crawford, that I believe that it applies -- setting aside, right now, the hearsay exception. So it would apply, and this goes into two of the prongs that are established by the Court: That, one, it did not establish or prove past events potentially relevant to later criminal prosecution; and, three, were not procured with the primary purpose of creating an out-of-court substitute for trial testimony. That absolutely applies in this situation. Now, the question of whether these are introduced for the truth of the matter, Judge, they absolutely are. So Donna Adelson --
JUDGE WHEELER: I've already made that ruling. I am not going to hear argument on that again. I've made that ruling. Because the only way that you can get a confrontation clause protection is if they are not offered for the truth of the matter asserted. That's not my ruling here.
My ruling is that they are not offered for the truth of the matter asserted. So you can't say, well, if they are offered for the truth of the matter asserted, then Crawford applies. Yes, you're right with that, but that's not my ruling. So Crawford doesn't apply.
MR. DECOSTE: Respectfully, with the government coming forward and saying we want to present it to show that "ex-girlfriend" was said and not "Katherine Magbanua," that's introducing it for the truth of the matter asserted.
The government has just come in and said, Judge, we're not entering it for the truth of the matter asserted, but they have not fully articulated then how they are going to use it.
My fear, from previous litigation with the government on this case -- that's exactly what they are doing it for. They are bringing it in for the statements that were made by Donna Adelson. The fact that the people speaking on the call -- the fact that it was a ruse doesn't apply to the people on the call because they didn't know it was a ruse.
when they're making the statement, they are making the statement thinking this is either law enforcement or this is somebody that's trying to blackmail us. So the fact that it was a ruse doesn't apply to these people that are having the discussion.
The government wants to bring in that there were discussions about a TV and that it would be about $5,000. They are absolutely bringing it in for what's being discussed in the call.
Now, if what's being discussed in the call is not being entered in for the truth of the matter and it is just the fact that these people are communicating, then they don't need the calls. They have the communications. That's all, Your Honor.
JUDGE WHEELER: Okay. We are rehashing this probably three or four times, and you've made your record. But they are admissible because they are not offered for the truth of the matter asserted, and I've already made myself clear as to why that is the case a number of times.
Secondly, if they are not for the truth of the matter asserted, the case law is clear that they don't have any confrontation clause protection. And I can cite to a number of cases. There's Thurston v. State, which is 307 Sso.3d 714, which specifically states: There's no confrontation clause violation because the confrontation clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.
So those -- if they are admitted on that basis, they do not have the protection of Crawford or the confrontation clause protection that is set forth in Crawford, and so that's my ruling. There's other cases. There's a wealth of case law on that where they don't have that protection, and so they will be admissible.
All right. Anything else before we bring the jury in? Ms. Cappleman?
MS. CAPPLEMAN: Judge, just that I intend to call number three on your list, Ms. Richey, first. I think she will be very short, and I just want to get her done since she is here. Otherwise, your list is correct.
JUDGE WHEELER: All right. Thank you. Mr. DeCcoste, anything from the Defense? Ms. Kawass?
MS. KAWASS: Nothing at this time, Judge.
MR. DECOSTE: No, Your Honor.
JUDGE WHEELER: Thank you. Let's bring the jury in, please.
(Jury enters the courtroom.)
JUDGE WHEELER: All right. Please be seated, and good morning to everyone. Thank you for your promptness and your attention. We are ready to continue with the testimony, and the State will call its next witness.
MS. CAPPLEMAN: The State calls Elizabeth Richey.
JUDGE WHEELER: All right. Elizabeth Richey, please.
(Pause. )
JUDGE WHEELER: Good morning. If you could, please come up to the witness stand. Before you have a seat, we are going to swear you in. Please respond to the clerk.
whereupon, ELIZABETH RICHEY was called as a witness, having been first duly sworn, was examined and testified as follows:
JUDGE WHEELER: Please be seated. I just need you to speak loud and clear into that microphone, okay?
DIRECT EXAMINATION BY MS. CAPPLEMAN:
MS. CAPPLEMAN: Ms. Richey, are you comfortable removing your mask just for purposes of your testimony?
ELIZABETH RICHEY: I would rather not for the sake of everybody else.
MS. CAPPLEMAN: Okay. I just want to remind you that it is much more difficult to hear you; so just please be cognizant of speaking up and into that microphone if you prefer to wear it.
ELIZABETH RICHEY: Yes, ma'am.
MS. CAPPLEMAN: Please say your name and spell your name.
ELIZABETH RICHEY: My name is Elizabeth Richey, E-L-I-Z-A-B-E-T-H, R-I-C-H-E-Y.
MS. CAPPLEMAN: How are you employed, ma'am?
ELIZABETH RICHEY: I am a crime laboratory analyst in the firearms section with the Florida Department of Law Enforcement here in Tallahassee.
MS. CAPPLEMAN: How long have you been employed in that way?
ELIZABETH RICHEY: I have been an analyst since 2012.
MS. CAPPLEMAN: what are your duties as a crime lab analyst?
ELIZABETH RICHEY: My primary responsibility as an analyst is to look at fired components -- so objects like bullets, cartridge cases, or shot shells -- and try to determine if they came from a suspect firearm from a crime scene. If there is no firearm that is available, then my job is to try to determine if they came from the same firearm or how many firearms may have been used in a scene.
MS. CAPPLEMAN: Have you previously testified in a court of law as an expert in firearms analysis?
ELIZABETH RICHEY: Yes, I have.
MS. CAPPLEMAN: How many times?
ELIZABETH RICHEY: Approximately 80.
MS. CAPPLEMAN: All right. And is your area of expertise correct: Firearms analysis? Or should it be firearms identification, or can it be either?
ELIZABETH RICHEY: It can be either.
MS. CAPPLEMAN: Okay. Judge, at this time I'll tender the expert -- the witness as an expert in the area of firearms analysis and identification.
JUDGE WHEELER: Ms. Kawass, would you like to voir dire the witness?
MS. KAWASS: No, thank you, Your Honor.
JUDGE WHEELER: Okay. You may proceed.
BY MS. CAPPLEMAN:
MS. CAPPLEMAN: All right. Ms. Richey, did you examine some projectiles in reference to the murder of Dan Markel?
ELIZABETH RICHEY: Yes, I did.
MS. CAPPLEMAN: I'm going to approach and show you what's been introduced into evidence as State's 125 and 126. what is a projectile?
ELIZABETH RICHEY: A projectile is the bullet of a cartridge. when most people are talking about live units of ammunition, they frequently refer to it as a bullet. But that's an incorrect statement because a bullet is actually one component of a cartridge. So the cartridge is the cartridge case, often referred to as the brass; the primer which provides the spark; and then the gunpowder inside the cartridge case. And then the actual bullet, or projectile, is the item that is designed to hit a target.
MS. CAPPLEMAN: All right. And these items in front of you, State's 125 and 126, are the things that actually expel from the cartridge casing, correct?
ELIZABETH RICHEY: That is correct.
MS. CAPPLEMAN: All right. In this case these items were removed from the head of our deceased victim?
ELIZABETH RICHEY: That is what I was told.
MS. CAPPLEMAN: All right. And what do you do in reference to these items?
ELIZABETH RICHEY: when I receive, in a case like this, just bullets, then I will try to determine if they came from the same firearm. I'll first start with an inventory of the items that are received.
So I will start by looking at the class characteristics, and class characteristics are characteristics of the bullet that can help me try to narrow down a potential manufacturer of a firearm.
So I look at the diameter of the bullet. That can potentially give me a caliber class for the firearm. I look at how many lands and grooves are on the side of the bullet. And lands and grooves are the grooves that are manufactured into the inside of the barrel to create the rifling. So as the bullet passes down the barrel, it swells to fill into the rifling. So the widths of the lands and grooves and the numbers of lands and grooves can be measured. I can take the diameter.
And if these class characteristics agree between two items, then I will move to an examination of individual characteristics. The way I do that is I have a comparison microscope, and I have -- what that is is two compound microscopes that sit side by side with an optical bridge with one set of eyepieces. And so it is kind of like looking through a pair of binoculars. But I can look at two items under the same magnification, and I can look at the defects on these two items and compare them at the same time.
Now, as bullets pass down a barrel, what's happening -- as I said before, they are swelling to fill into the rifling. But inside the barrel -- there is also microscopic imperfections that are inside the barrel that that bullet is rubbing up against; so that creates striations on the side of the bullet.
So what I'm doing when I'm examining a bullet for individual characteristics to try to determine if they were fired from the same firearm is I will compare those striations of Bullet A to Bullet B and look at the pattern and defects inside those striations to try to determine if they were fired from the same firearm.
It's kind of like trying to line up two bar codes. That's kind of what it looks like under my microscope. So once I go through this whole examination, then I will come to a conclusion based on the information that I see on the bullets.
MS. CAPPLEMAN: So when the barrel of a firearm is manufactured, are you saying that the individual riffling characteristics that you're observing are unique to each firearm?
ELIZABETH RICHEY: Yes.
MS. CAPPLEMAN: All right. So are you able to tell, based on your examination of State's Exhibits 125 and 126, whether these two projectiles were fired from the same firearm?
ELIZABETH RICHEY: I was able to do that in this case.
MS. CAPPLEMAN: And what was your conclusion?
ELIZABETH RICHEY: That they were fired from the same firearm.
MS. CAPPLEMAN: All right. And can you tell us anything about the firearm itself based on the items that you were provided?
ELIZABETH RICHEY: well, these bullets are .38 caliber class. Caliber class is merely a family of calibers, which the family is similar just because of the diameter of the bullet. .38 Special, .357 Magnum, 9 millimeter Luger, and .380 Auto are four very different cartridges. But they have the same -- similar diameter bullet, and so they fall within the same caliber class. These bullets are more -- most consistent with .38 Special or .357 Magnum cartridges.
MS. CAPPLEMAN: And is that type of weapon a revolver?
ELIZABETH RICHEY: Yes.
MS. CAPPLEMAN: What does that mean?
ELIZABETH RICHEY: A revolver is a type of firearm that has a cylinder as opposed to a magazine. So if you think of, like, a cowboy gun -- you have the cylinder where it has multiple chambers, and you load each cartridge into each chamber. You put the cylinder back into the firearm, and either by pulling the hammer back or by pulling the trigger, you can fire the firearm.
Now, to reload the firearm, you have to remove manually each cartridge case from each chamber of the cylinder and then manually reload it, as opposed to a semiautomatic pistol like a Glock that has a magazine that when you fire the firearm, there's a cartridge in the barrel. And pull the trigger, bullet goes down the barrel, the slide comes back, cartridge case is automatically extracted and ejected. It is thrown out of the firearm. The slide pushes forward and reloads from the magazine into the chamber to be ready to fire.
So a revolver, you have to manually remove the cartridge cases once you've fired all the ammunition in the firearm. A semiautomatic pistol will automatically remove cartridge cases from the gun for as long as you have ammunition.
MS. CAPPLEMAN: In this case we did not find cartridge casings at the crime scene. Is that consistent with your findings regarding this being a revolver?
ELIZABETH RICHEY: Yes.
MS. CAPPLEMAN: And that's because the cartridge casings would stay inside the weapon?
ELIZABETH RICHEY: Until they were manually removed, yes.
MS. CAPPLEMAN: Thank you. No further questions.
JUDGE WHEELER: Cross-examination?
MS. KAWASS: Thank you, Your Honor.
CROSS- EXAMINATION BY MS. KAWASS:
MS. KAWASS: Good morning, Ms. Richey.
ELIZABETH RICHEY: Good morning.
MS. KAWASS: How are you doing today?
ELIZABETH RICHEY: I'm okay.
MS. KAWASS: Just a few questions. So if you had the firearm in this case, would you be able to make a determination if those bullets came from that firearm?
ELIZABETH RICHEY: It is possible.
MS. KAWASS: Okay. So if a firearm was used, let's say, in multiple homicides or multiple other crimes -- if you were able to locate that firearm and bullets were recovered from those other crimes, it's possible that you could link up that gun to other crimes, right?
ELIZABETH RICHEY: It is possible.
MS. KAWASS: Okay. No further questions. Thank you.
JUDGE WHEELER: Any redirect?
MS. CAPPLEMAN: NO, sir.
JUDGE WHEELER: We can excuse the witness?
MS. CAPPLEMAN: Yes, Your Honor.
JUDGE WHEELER: All right. Thank you, ma'am. You are free to go.
ELIZABETH RICHEY: Thank you.